Update 04/29/16: At a hearing on April 29, Commonwealth’s Attorney Nate Green and defense attorney Tim Clancy both briefly addressed the issue of “medically appropriate treatment” that was raised at the previous hearing.

At the conclusion of the hearing Clancy made a formal motion for the charges against Martinez to be dismissed.

Judge William H. Shaw said he would take some additional time to review similar cases and then deliver his decision in a written statement submitted into public record, outside of open court. No estimate for when the decision would be submitted was given.

Original Story: By the end of the month, the deaf and mute defendant in the rape and murder of a 16-year-old James City County girl could learn if he will remain in state hospital care indefinitely.

Oswaldo Martinez, a 44-year-old illegal immigrant from El Salvador, has been in and out of state mental hospitals and courtrooms since he was arrested in February 2005 following the death of Brittany Binger.

He was charged with capital murder, but the case has yet to go to trial because he has not been deemed competent to defend himself in court.

During a hearing Tuesday morning in Williamsburg-James City County Circuit Court, defense attorney Tim Clancy presented an affidavit from the current sign language interpreter at Central State confirming Martinez no longer receives regular sign language instruction.

“The reason there are no efforts to teach him again is because he’s plateaued,” Clancy said.

Martinez was present for the hearing and an interpreter used sign language to translate the proceedings.

Judge William H. Shaw must now determine if the treatment Martinez is receiving is “medically appropriate,” the remaining qualification that would allow Martinez to remain in state hospital care for perpetuity.

Commonwealth’s Attorney Nate Green said the court has already agreed to the other qualifications outlined in the state code — Martinez is charged with capital murder, he has been deemed incompetent now and in the foreseeable future and he presents a danger to himself and others.

While Clancy suggested the Commonwealth is simply “warehousing” Martinez, Green argued the statutes of Virginia “allow for” and “dictate” that he remain in custody.

“I don’t want there to be this implication that he’s being warehoused to be warehoused,” Green said.

Regarding “medically appropriate treatment,” Green said the state code could be interpreted to mean that treatment does not have to be “medical,” but if it is, it must be deemed “appropriate.”

Clancy argued the “continued detention” of Martinez must be justified.

“He is not getting any treatment,” Clancy said. “Whatever he’s getting can’t be regarded as being medical.”

Green and Clancy agreed they would obtain a copy of Martinez’s schedule at Central State and present evidence regarding his treatment during a hearing at 1 p.m. April 29.

If the court determines Martinez should remain in state hospital care, he will return to court every six months for a competency review.